Citation Nr: 18159219 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-01 136 DATE: December 19, 2018 ORDER Entitlement to service connection for liver cancer, to include hepatocellular cholangiocarcinoma, is granted. Entitlement to service connection for renal cancer is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran’s liver cancer, to include hepatocellular cholangiocarcinoma, is etiologically related to service. 2. The Veteran’s renal cancer is etiologically related to service. 3. The Veteran’s cause of death was cholangiocarcinoma and hepatocellular carcinoma. CONCLUSIONS OF LAW 1. The criteria for service connection for liver cancer, to include hepatocellular cholangiocarcinoma, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for renal cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Cholangiocarcinoma and hepatocellular carcinoma are etiologically related to service. A disability incurred in service resulted in death. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1970 to December 1971, including service in the Republic of Vietnam. He died on September [redacted], 2015. The appellant claims as his surviving spouse. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2015 and December 2015 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). After the Veteran died in September 2015, the appellant, as the Veteran’s surviving spouse, in October 2015, requested to be substituted for the Veteran for the purpose of continuing the claims pending at his death pursuant to 38 U.S.C. §5121A. The claims file does not contain a document directly confirming that VA granted substitution for the Veteran’s pending claims. However, the two service-connection claims the Veteran was pursuing at the time of his death have been carried forward as if substitution has occurred. See October 2016 Statement of the Case. Therefore, the Board will infer that VA has granted substitution for the Veteran’s pending claims. In May 2017, the Board remanded the above issues for additional development. The Board finds that there has been substantial compliance with the remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307 (a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4D; 2,4,5T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hepatocellular Cholangiocarcinoma and Renal Cancer The appellant contends that the Veteran was entitled to service connection for liver cancer, to include hepatocellular cholangiocarcinoma, and service connection for renal cancer. The appellant’s representative acknowledges that the Veteran’s liver cancer and kidney cancer are not enumerated diseases entitled to the presumption under 38 C.F.R. § 3.309(e), but rather asserts that service connection is warranted on a direct basis. The evidence of record indicates that the Veteran’s cancers of the liver and kidney did not manifest until well after service. Service treatment records indicate that a January 1970 pre-induction physical examination and an October 1971 separation examination were reported as normal. The record reflects that the Veteran presented with complaints of abdominal pain in June 2015. Diagnostic testing in June 2015 identified renal and liver masses. Thereafter, a June 2015 liver biopsy showed hepatocellular and cholangiocarcinoma. Subsequent records indicate that the Veteran underwent palliative radiation therapy in July 2015. A September 2015 letter from the Veteran’s primary care physician indicated that cholangiocarcinoma is a type of liver cancer endemic to South East Asia, whereby a liver fluke parasite commonly infects humans. The physician noted that the Veteran served on active duty in Vietnam, where he consumed fish likely to have been contaminated with this parasite. The physician indicated that the Veteran did not have any ongoing liver problems such as hepatitis C or primary sclerosing cholangitis, which are other risk factors for this malignancy. The physician opined that there is a direct link between the Veteran’s military service in Vietnam and subsequent development of cholangiocarcinoma. Several studies and articles from medical publications were submitted in support of the opinion. Thereafter, in May 2016, a private medical consultant opinion was retained by the Appellant. The medical consultant opined that based upon his review of the Veteran’s military service, clinical history, and post-service medical records, it is more likely than not that there is a causal relationship between the Veteran’s in-service exposure to dioxin present in Agent Orange and his subsequent development of hepatocellular carcinoma and cholangiocarcinoma. The medical consultant noted that the Veteran did not have liver or gall bladder disease nor a family history of cancer, and that his history of cigarette smoking and alcohol consumption were not risk factors for cholangiocarcinoma. The consultant referenced the liver fluke infestation cited to in the private physician letter, but noted that there was no histologic evidence of the parasite in the Veteran’s liver biopsy. The May 2016 report further referenced medical studies that indicated that Agent Orange exposure has been shown to result in a resistance to insulin. The medical consultant reported that resistance to the action of insulin is believed to contribute to the development of cancer. The report indicated that that the Veteran’s hypertension, hyperlipidemia, and insulin resistance are components of the metabolic syndrome that has been shown to be associated with increased susceptibility to cancer. The medical consultant opined that the metabolic consequences of insulin resistance, gene-damaging effects of dioxin on the DNA of hepatocytes and cholangiocytes, and consequent dysregulation of basic cell functions, were caused by the Veteran’s in-service dioxin exposure and initiated a series of converging biologic processes that contributed to the Veteran’s development of his cancers. The consultant opined that the Veteran’s two documented uncommon cancers of the liver and a third cancer in the kidneys simultaneously reflects a common causal factor, including Agent Orange exposure, and that it is more likely than not that his cancers were related to his exposure to Agent Orange and associated dioxin while serving in Vietnam. The Board finds these opinions are entitled to probative weight, as the opinions considered and addressed the Veteran’s in-country service in the Republic of Vietnam, were based on a thorough review of the claims file, and provided sufficient supporting rationales for the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds opinions are of high probative value. The preponderance of the evidence therefore clearly favors the claims, and service connection for liver cancer, to include hepatocellular cholangiocarcinoma, and service connection for renal cancer are warranted on a direct basis. Cause of Death Dependency and indemnity (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C. § 1310 (2012). Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). As decided herein, the Veteran’s liver cancer, to include hepatocellular cholangiocarcinoma, is found to be etiologically related to service. The Veteran’s cause of death was cholangiocarcinoma and hepatocellular carcinoma. Consequently, service connection for the cause of the Veteran’s death is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel